Journal of Ethnic and Migration Studies Vol. 28, No.

2: 343± 354 April 2002

The challenge of post-modern legality and Muslim legal

pluralism in England

Ihsan Yilmaz

Abstract This paper endeavours to show that one can speak of legal pluralism in the
English context. Muslim law in Britain exists both on an of® cial level, where recognition
is given by the legal system, and on an unof® cial level where the of® cial legal system
refuses its recognition. Unof® cial Muslim law has been applied in non-dispute situations
of everyday lives of Muslims. Marriages and divorces are arranged according to the rules
of Muslim law and customs. Muslim individuals apply relevant law in various
contextual situations aiming to meet the demands of different overlapping normative
orderings. This post-modern phenomenon reminds us that legal modernity has limits
and that legal post-modernity is a reality.

KEYWORDS: ENGLISH LAW; MUSLIM LAW; P OST-MODERNITY; LEGAL PLURALISM; FAMILY

LAW

Introduction
Although English law remains the official law of England, it is not the sole
one which singularly governs and regulates all legal sides of familial relation-
ships and other legal relations. Unofficial Muslim law can exist where the
state provides a parallel rule or has developed no rule concerning it. One
can speak of legal pluralism in the English context since unofficial laws find
ways to survive in an alien milieu whether the official law recognises the reality
or not.1 In that context, keeping their own law unincorporated, Muslims have
control over their own law without outside interference. Muslim law in Britain
exists both on an official level, where recognition is given by the legal system,
and on an unofficial level where the official legal system refuses its recognition
(Pearl and Menski 1998; Yilmaz 2000). Muslims, at the same time, use those
aspects of the official law which benefit or assist them in maintaining their
unofficial law.
Muslim law is still superior and dominant over English law in the Muslim
mind and in the eyes of the Muslim community; and many Muslim individuals
follow Muslim law by employing several strategies in England whatever legal
modernity claims. Unofficial Muslim law has been applied in non-dispute
situations within the everyday lives of Muslims. Marriages and divorces are
arranged according to the rules of Muslim law and customs. Muslim individuals
skilfully navigate across official and unofficial laws. Thus, as a result of this
`Muslim post-modern legality’, not many Muslim cases have appeared before
the courts regarding these matters in the last few years.
ISSN 1369-183 X print/ISSN 1469-9451 online/02/020343-1 2 Ó 2002 Taylor & Francis Ltd
DOI: 10.1080/1369183022012437 8
Carfax Publishing
344 I. Yilmaz

Legal modernity in England and its limits

Modernity covers virtually every dimension and aspect of life and it has
substantial implications in the legal field as well. With the advent of the modern
nation-state, to develop a uniform legal system within national boundaries
became the ultimate goal in the modern era. The theoretical foundations of this
centralist and uniformist approach have roots in legal positivism which is a main
theme of legal modernity. In legal modernity the concept of the territorial
nation-state replaced the concept of humanity as the new point of reference for
law (Sack 1986: 5). Personal law is no longer an issue at stake: territorial law
replaced personal laws, special laws are replaced by general ones, customary
ones by statute laws. Secular motives and techniques have superseded religious
sanctions and inspiration. Law making and applying have become a professional
area which operates in the name of a central national power. This central
national power tolerates no rivals by means of law in its sovereignty (Galanter
1996: 153± 4).
Legal modernity takes the social space between legislator and subject implic-
itly as a normative vacuum. It assumes that the legislator is more or less
autonomous from the social context in which the rule is to have its effects: the
subject of the rule is atomistic individuals; the legislator’s command is uninflu-
enced by the social medium. This conceptualisation of law perceives law as
distinct, uniform, coherent, autonomous, exclusive, and a systematic hierarchical
ordering of normative propositions.2 This can be supplied `either from the top
downwards ¼ or from the bottom upwards as deriving their validity from ever
more general layers of norms until one reaches some ultimate norm(s)’ (Griffiths
1986: 3). In both cases, the state is the unique raison d’eÃtre of law. There is a sine
qua non connection between state and law. Law is a single, unified and exclusive
hierarchical normative ordering of the state.
Assimilationist assumptions of development and modernity underlie such
conceptualisations: until the heterogeneous structures have been smelted into a
homogeneous population which modern states are likely to enjoy, allowances
can be made while unification remains as the ultimate goal. Positivist and
centralist understandings of legal modernity allow other forms of normative
orderings with a hope for state-centred homogeneity.
Coupled with legal centralist understanding, the uniformist idea of a legal
system is a core part of the modern English legal system. In this legally positivist
system, all other mechanisms of social existence in a given society, such as
family or religion, are hierarchically subordinate to the law. As a modern legal
system, the English legal system asserts itself as a legally uniform and centralist
system applicable to everybody without exception. English law is regarded as
supreme and applicable to all persons. The English legal system is the one and
only official legal system, and other systems of law have prima facie no place in
it except to the extent that the official legal system may recognise their rules.
On the other hand, social engineering through law is a contentious matter.
Socio-legal studies have shown that, in praxis, claims of legal modernity do not
work fully and state law has limits ± Allott (1980) provides a comprehensive
analysis of this point. In multicultural situations there are alternative normative
orderings in society, and resistance to official law is always an issue at stake
whatever its degree is. As one writer strongly states, `the ª reachº of state power
and state law is subject to specific conditions and always falls short of its
 The challenge of post-modern legality 345

ideological pretensions’ (Hunt 1992: 59). No law can, ultimately, compel action.
All the law can do is `try to induce someone, by order or by persuasion or by
suggestion, to a certain course of action’ (Allott 1980: 45± 6).
A body of research shows the limits to the capacity of law to transform social
life. For instance, Moore’s semi-autonomous model tries to explain this phenom-
enon (Moore 1973, 1978). She explains why new laws to direct change do not
necessarily produce the anticipated consequences. To her, the social space
between legislator and subject is not a normative vacuum. Although the state
has the power to use physical force, it does not mean that there are no other
agencies and modes of inducing compliance (Moore 1973: 723; also Pospisil
1971). Even though the formal legal institutions enjoy a kind of monopoly in
terms of the legitimate use of power, there are certain other forms of effective
coercion or effective inducement. Between the individual and the body politic,
there are various interposed social fields to which the individual belongs. These
social fields have their own rules and the means of coercing or inducing
compliance. Ample research suggests that in all communities a number of
modes of normative orderings co-exist with the official law. Local law, ethnic
minority laws and customs can be cited as some major factors that influence and
impede the effectiveness of law in modern societies.3 These factors are the
sources of multiple interpretations, incoherence, multiple legal authorities, local
interests and local concerns. These factors may also affect the degree of respect
for the official lawmaker, other than being a source of justification for popular
resistance. On the other hand, resistance is not a static process. There is always
a possibility of interaction between the official law and other unofficial norma-
tive orderings.

Muslim identity and shari’a in the English context

Religious groupings, particularly in the post-modern age, have emerged almost
everywhere as a basis of the refusal of assimilation. Ethnic minorities have been
developing a variety of avoidance and resistance strategies. Moreover, as a
reaction, they re-assert their identities. A reconstruction of forms of community
life has become a reality. As a result, a very diverse `post-modern’ picture has
emerged. In that picture one can easily identify the active resistance of these
groups to the assimilative ambitions of the legal system. The various ethnic
minorities of England have actively developed strategies of resistance to `English
legal hegemony’ which are mainly religiously inspired (King 1995a: 3). This
post-modern phenomenon is very much observable for British Muslims. Instead
of assimilation or adaptation along expected lines, they have re-ordered their
lives on their own terms.
In the English context, conflicts between the official laws and unofficial
Muslim law have usually been seen as temporary and it has been believed that
ethnic minorities would soon learn and follow the law of the land. Indeed, some
changes have come into existence in the Muslim socio-legal sphere: the processes
of urbanisation and modernisation, in a long interaction process, have affected
British Muslims’ lives and identities. As a result of living in modern societies,
Muslims are faced with new challenges. They have experienced urbanisation
and the spread of technology and communications. In the British context, Wolffe
(1994: 160) distinguishes four general kinds of relationship between Muslims
and British society: assimilation and isolation, two extremes, and integration and
346 I. Yilmaz

redefinition, two middle courses.4 Although `it is not easy to be British and
Muslim at the same time’ (Modood 1992, see also 1993, 1994), Muslims can seek
some form of middle way. They might remain faithful to Islam while identifying
fully with Britain. In that sense, integration means the adaptation of British
structures to facilitate the practice of Islam within them. Although the antici-
pated assimilation of English cultural patterns has not occurred and although
Muslims, and many other minorities, are autonomously evolving their own
distinctive lifestyles, their laws and customs have undergone change (Ballard
1982: 190; Joly 1995: 183).
After so many years, the customs and laws of Muslims are now increasingly
visible. Assimilationist assumptions about their demise have not turned into
social reality (on this see Menski 1993; Pearl and Menski 1998; Poulter 1986,
1998). And at any rate these laws and customs have frequently been a major
basis for Muslims’ claim to distinctiveness, cohesion and differential legal
treatment (Yilmaz 2000). The English legal system has already recognised some
partial rules and norms of some ethnic minority normative orderings.
The assumed `legal assimilation process’ of the Muslim ethnic minority could
occur in three stages. In the first stage, Muslims might be ignorant of particular
legal requirements. Customary practices would continue. At the second stage,
they would learn to follow certain rules and requirements of the lex loci. At the
third stage, it might be argued that they would completely abandon their
Muslim law and, in a rational progression, would use only the English law.
However, evidence does not suggest that this third stage has come into exist-
ence. Laws and customs of Muslims, among others, are still alive. It is well
known that shari’a is one of the most crucial sources of influence wherever a
Muslim is and it is one of the main reasons for Muslims’ resistance to assimi-
lation. At this point, it is important to understand the influences under which
Muslim consciousness, conscience and mind exist.
In classical Islamic theory, law is the revealed will of God, a divinely-ordained
system preceding and not preceded by the Muslim state, controlling and not
controlled by Muslim society. Muslim definition of jurisprudence is knowledge
of the practical rules of religion. Islam is a system of state, society, law, thought,
and art ± a civilisation with religion as its unifying, and eventually dominating
factor. In particular, family law issues have always been, to the Muslim mind
and legal consciousness, even more closely associated with religion than other
legal matters, and therefore controlled by Islamic law.
It is a wide known fact that Islam `demands full allegiance from a person, once
he has chosen freely to embrace it’ (Kettani 1990: 226). If the Muslim law
conflicts with the secular laws of nation-states, it is divine law that must prevail.
This general principle that God’s law must prevail appears in specific directives
to Muslims not only in the West but also in their nation-states `to contest, defend
and protect themselves against ª rationalº and secular authority’ (King 1995a: 4).
Indeed, the impact of the juristic discourse can be seen in Muslim law’s
`potential of being a powerful resource for a reassertion of Islamic identity’
(Nielsen 1987a: 17).
The evolution of the juristic discourse on Muslim minorities with regard to
whether or not Muslims may reside in non-Muslim territory and under what
circumstances, the relationships of these Muslims to dar al-Islam and the ethical
and legal duties that these Muslims owe to the Islamic law and to their host
non-Muslim polity, constitute an example of changing consciousness (Fadl 1994).
 The challenge of post-modern legality 347

Indeed, as Fadl underlines, the juristic discourse on the issue has not been
dogmatic. In the practical sphere, most Muslim community leaders in Europe
today regard the concepts of dar al-harb and dar al-Islam as irrelevant in the
present-day context (Fadl 1994: 141).5 Thus, many Muslims residing nowadays
in Europe do not see a conflict between their presence and shari’a. They concern
themselves primarily with the Muslim law rather than with the legislation of
particular countries, especially the laws pertaining to marriage and divorce.
Some Muslim scholars have argued that `Muslims residing in non-Muslim
territories need their own judges to adjudicate conflicts and resolve disputes.
That these judges are appointed by non-Muslims is regrettable but necessary’
(Fadl 1994: 151). They put much emphasis on family and daily life, and not only
dispute situations, since to them `absorption usually comes through mixed
marriages, abandoning Muslim names, adopting permissive habits and mental
acceptance of non-Muslim laws and philosophy’ (Masud 1989: 125).
In England, as in other modern countries, the state’s legal decisions and
positions, in a way, have forced Muslims to reorganise their life-styles. This has
resulted in the emergence of a `Muslim post-modern legality’. Today, this
phenomenon is most visible in the field of family law that pertains to regis-
tration of marriage, solemnisation of marriage, polygamy and divorce. Let us
consider each of these in turn.

Solemnisation of marriage: nikah

Islamic law does not distinguish between civil and religious marriages. How-
ever, the state in England wishes to supervise the actual process of civil marriage
in order to prevent fraud and abuse. Should a religious ceremony take place in
England without fulfilling the preliminary civil requirements the official law will
not recognise this marriage as legally valid. If a civil ceremony in an English
registry office is followed by a religious ceremony in an unregistered building,
the religious ceremony does not supersede or invalidate the civil ceremony and
is not registered as a marriage in any marriage register book.6 In other words,
the civil ceremony is the only marriage which English law recognises. An
unregistered Muslim marriage will be void even if the parties knowingly and
wilfully contracted the marriage.
Until 1990 Muslims could marry merely in a register office or a registered
building.7 A registered building needed to be a separate building certified under
the Places of Worship Registration Act 1855 as a place for worship only. Thus,
although Christians could use churches according to this rule, most Muslims
could not have their marriages officially solemnised in a mosque or community
centre, since most mosques are not separate buildings but are cultural centres
used for different purposes such as community events and public meetings. As
a result, in 1991 only 74 mosques were registered buildings out of a total 452
registered as a place of worship according to the 1855 Act. However, an
adjustment was then made in easing the requirement that there must be a
separate building in order for a place of worship to be qualified as a registered
building. The Marriage (Registration of Buildings) Act 1990 and the Marriage
Act 1994 are two recent amendments to the Marriage Act 1949 that allow
buildings to become registered as `approved premises’ where a valid registration
can take place.
Some mosques, rather than having present an official of the local registry
348 I. Yilmaz

office at the ceremony, have sought recognition of one of their own officials to
act on behalf of the registry. In such cases, a fully legalised marriage can be
performed by a Muslim official according to both Muslim law and English law,
which is an interesting feature of plural legality.
Another problem regarding Muslim marriage is the attendance of the couple.
According to Muslim law, a marriage is capable of being effected by an
exchange of declarations between representatives (wakil) of the couple acting on
their behalf. In Muslim ceremonies, one often finds the couple in separate rooms,
making declarations separately. Such a marriage will not be a valid marriage
under English law since the bride and bridegroom have to attend in person and
exchange their vows using a standard form of words.8
Solemnisation of marriages according to Muslim law has been observed
among Muslims in Britain since the 1950s. Research late in the 1950s showed that
Muslims in Britain had three types of marriage: a legalised British marriage, a
Muslim form of marriage, and the relationship known as common-law marriage
(Collins 1957: 160). At that time, couples started to observe both English and
Muslim laws, for two reasons. First, some Muslim couples, formerly married by
a registrar, later submitted to a religious nikah as well. Secondly, spouses who
had a nikah only might ask that the union be ratified by an official marriage as
well, so as to safeguard the family’s and prospective children’s status. After an
initial period of insecurity, when some Asian marriages in Britain might not
have been registered, communities quickly learned the lex loci and constructed
their new rules in these matters. Virtually all Muslims have learnt the law and
register their marriages in accordance with English law (Menski 1993: 259).
With the official registration of the marriage, the prospective husband is
legally tied down to the obligations of the marriage, but it also has the curious
effect that the couple are then still not socially and religiously married. The
spouses might be married under the official law, yet will not be counted as
married in the eyes of the community and they will abstain from sexual
intercourse until they get married religiously as well. Only after religious
marriage will they be able to consummate their marriage. Otherwise, their
marriage would be regarded as sinful and illegitimate from a religious and
cultural perspective. This indicates that it is the religious marriage that deter-
mines the nature of the relationship, the official one is only seen as a mere
formality which is imposed by the state (see Hamilton 1995: 74; Hiro 1991: 159).
Most Muslims in England register their marriage first because of concerns of
izzat, knowing although the couple are not actually fully married till the
completion of nikah. In that way, they prevent the groom’s possible abuse of the
socio-legal situation of the Muslim minority by just walking away after the first
night or after a short while. As a result Muslims, like other South Asians,
developed innovative methods to counter these problems. The total picture is
that, if a Muslim couple want to marry, they will actually marry twice. By doing
so, they meet the requirements of both Muslim and English law. In addition,
they fortify the strength of nikah by incorporating official legal rules into their
unofficial laws.

Polygamy
With regard to polygamy, there is an obvious conflict between Muslim law and
English law.9 Under Muslim law, a man is permitted to marry up to four wives
 The challenge of post-modern legality 349

at any one time. On the other hand, a marriage in which either party is already
married to someone else will automatically be null and void according to
English law.10
English private international law recognises polygamous marriages contracted
by foreign domiciliaries abroad provided it satisfies the English rules of
private international law for determining the validity of such marriages. If the
marriage takes place in a country in which polygamy is illegal, it cannot be
regarded as polygamous in nature. Then such a marriage will be void as being
bigamous. A marriage celebrated in England polygamously and without any
civil ceremony is invalid, whatever the domicile of the parties.11 Moreover, a
polygamous marriage contracted abroad by a person domiciled in England is
void.
Until recently, some Muslim men circumvented English law by claiming that
they had domicile where polygamy was allowed and then brought their second
wives to England where, according to conflicts law, such marriages would be
regarded as valid. However, now, if a person’s domicile allows it, the law does
not prevent him remarrying polygamously; conflicts law recognises valid polyg-
amous overseas marriages, but not their immigration consequences.12 Officially,
a man can have only one wife residing in England at any one time.
On the other hand, English law allows no flexibility against English domicil-
iaries regarding polygamous marriages. In other words, a person domiciled in
England cannot marry polygamously under English law. As mentioned above,
if a person is a party to a subsisting marriage, he or she cannot validly contract
a second or subsequent marriage.13 This marriage will be void ab initio and the
offending party might be charged with the offence of bigamy.
Muslims nevertheless continue the practice of polygamy in England, although
the occurrences are very rare due to reasons such as economic conditions and
the improving levels of education of women. According to Aina Khan, a Muslim
solicitor who is a specialist in Islamic family law, `usually the courts ¼ regard
(the) second wife as a cohabitee (with) the first wife retaining all normal rights’.
She then goes on to say that:

Polygamy is becoming more common here (Britain) than it is even in the parts of the
Muslim world (sic). The average man seems to want to exercise his religious right to marry
more than once although in my experience they want to do so without taking on any of the
attendant responsibilities (sic).14

As a result, in newspapers, it is not surprising to see an advertisement from a

man looking for a second spouse, or a woman advertising to become a second
wife of a married man.
Among the Muslim community, there are also some cases in which the man
is already married and has his wife and child(ren) in Pakistan or elsewhere
abroad. He then marries a second time without divorcing his first wife, but with
a nikah only.15 Then he can still bring, if he wants, his first wife and child(ren)
from abroad (see Shaw 1988).
In a nutshell, Muslim law is fully employed by Muslims in the most criticised
field of Muslim law as well, whether the state recognises it or not. Although the
official law has declared polygamy illegal, a glance at the British Muslim
community will show that religious law in league with official law will always
gain preference.
350 I. Yilmaz

Divorce
Marriage under Islam, in contrast to Hinduism, Sikhism, and Christianity, is not
regarded as a sacrament but as a civil contract. Islamic law recognises divorce
and makes some provisions for divorce in such circumstances. Although permit-
ted, divorce tends to be strongly discouraged and disapproved of socially, and
the families involved try to do all they can to improve the situation. Divorce is
seen as a last resort, to be adopted only when all other remedies fail.
In Muslim law, divorce can be obtained in a number of extra-judicial ways.
Talaq is unilateral repudiation by the husband, khul is a divorce in exchange for
a consideration from the wife. Mubaraat is divorce by mutual consent. However,
in English law there is just one way of divorce, which is through a decree
granted by a court of civil jurisdiction on the grounds that the marriage has
irretrievably broken down.
Although it has been laid down explicitly since 1973 that no extra-judicial
divorce shall be recognised in English law,16 secular divorce is not regarded as
sufficient to dissolve a marriage in the eyes of many Muslims. Religious divorce
is still very important for the Muslim mentality and for the community.17
Muslim husbands in Britain can and do still divorce their wives by talaq (see
Pearl and Menski 1998: 393± 8). If the woman is not religiously divorced from her
husband, it does not matter that she is divorced under the civil law; in the eyes
of the community her remarriage will be regarded as adulterous and any
possible offspring will be illegitimate since it is not allowed under religious law.
So, in reality, until the religious divorce is obtained, the civil divorce remains
ineffective because one party is unable to remarry. These marriages are called
`limping marriages’.18
Having married twice, Muslims have also learned to divorce twice. This
process is facilitated by the increasingly informal nature of English divorce law
itself. Almost 98 per cent of all divorces in English law are undefended by means
of what is called the `special procedure’. The statistics show that this procedure
is the normal practice (Golden 1996: 34). Thus, divorce has now become a kind
of administrative process. Judges pronounce decree nisi without a hearing. This
flexible procedure has allowed Muslims in Britain to maintain their customary
procedures of divorce almost unmodified. Muslims have learned to manipulate
the official law to the effect that they use the English divorce proceedings to
rubber-stamp the rather informal Muslim law procedures. After they have
sorted out their affairs according to Muslim law, they follow the procedure for
official divorces, although by that time there is no marriage left to dissolve. In
another scenario which the issue of `limping marriages’ implies, the husband
does not divorce his wife Islamically until the official divorce procedures have
been completed, so that he can blackmail the wife to negotiate favourable
settlements on several issues (Hamilton 1995: 118± 20).

Concluding remarks: the Muslim post-modern legal subjectivity

and legal pluralism
In the post-modern age, unitary theories of progress are increasingly being
questioned. Objective `truth’ has been replaced by a plurality of viewpoints;
relative truths are on the stage. This undermines the existence of social life as a
contained and integrated totality, a unified system of meaning. In this mentality,
 The challenge of post-modern legality 351

the particular, the multiple and the heterogeneous are acknowledged and
legitimised. In the post-modern condition, what one sees is a proliferation of
social codes relating to ethnicity, gender, culture and religion.
Legal modernity and legal centralism are challenged in this age as well. It is
being recognised that social space is not a normative vacuum. Local laws, along
with local cultures and identities, are preserved. Thus, totality in the legal arena
is questioned. Post-modern analyses of law and social movements have as-
saulted the claims of universal theories (Merry 1995: 13). Legal pluralism is a key
concept in a post-modern view of law (de Sousa Santos 1987: 297). This broader
conception of law indicates a more complex relation between law and society.
Law is conceptualised as more plural, and not located entirely in the state. This
legally plural notion of law in which state law is only one of many levels does
not give any privilege to centrality. While the legal officials and legal scholars
assume the state monopoly of legal production, research on legal pluralism
maintains the existence and circulation of different legal systems, the state legal
system being only one of them. The whole structure of law as an aspect of
culture should include all regulations which the people concerned observe as
law in their cultural tradition, including value systems (Chiba 1986: 4). An
increase in attention to discourse, narrativity and language along with legal
culture, legal ideology, and legal consciousness can be observed in the post-
modern condition. Faith in the progressive possibilities of law has been shaken.
A new agenda about justice in the world of discursive power and decentred
subjectivities has emerged in which no group is authorised to construct a vision
of a socially just world (Merry 1995: 13).
There are cross-cutting ties that are maintained by individuals at various
levels. These ties do not replace territorially-based communities or bureaucrati-
cally organised formal organisations, but are superimposed on them. The
self-identified and reflexive post-modern navigator is in continual dialogue with
formal organisations and with ethno-religious communities whose boundaries
are not necessarily defined by geography. The boundaries of a society or of a
community no longer correspond with the modern nation-state’s political bor-
ders. In that condition, `the local’ does not remain local since in the multicultural
context of a country, ethnic or religious groups may appear as relatively isolated
minorities, but when expanded into the global framework, their relationships
must be understood as part of an transnational network (McLellan and Rich-
mond 1994: 665).19
Law is a socio-cultural construct and not an Austinian political one; thus legal
pluralism or legal post-modernity always co-exist with multicultural reality. In
the socio-legal sphere, which actually consists of numerous semi-autonomous
fields, law both helps to constitute social interaction and is itself constructed by
social action where there is a continual dialogue between small, local narratives
and totalising meta-narratives. As we have seen in the English context, Muslims
have become key players of this post-modern process.
Muslims have not only challenged the presumptions of legal modernity but
have also shown that `they can become citizens while at the same time retaining
their Muslim identity’ (King 1995b: 112). They are not lost between cultures.
They navigate across different cultures rather skilfully; they are indeed `skilful
legal navigators’, applying relevant law in different contextual situations aiming
to meet the demands of different overlapping normative orderings, as we have
seen above. This phenomenon is a post-modern response to legal modernity. It
352 I. Yilmaz

reminds us again that legal modernity has limits and that legal post-modernity
is a reality.

Notes
1 Legal pluralism is an attribute of a social field and not of `law’ or a `legal system’; it is the
presence in a social space of more than one legal order (Griffiths 1986: 8). Law exists at every
level of society, sometimes as state law, sometimes as norms or rules of conduct, and is always
infused with cultural and historical meanings; see Starr (1992: xix, 174). In the condition of legal
pluralism, unofficial and official laws continuously and dynamically interact. The socio-legal
sphere is by no means a normative vacuum.
2 Hermeneutic approaches have challenged the idea of coherence. In hermeneutic or interpretive
understanding, the total picture consists of several local expressions of legal sensibilities and the
diversity and intermingling of these is likely to increase (Merry 1988: 887). Meanwhile interpre-
tivists keep on arguing that `coherence cannot be the major test of validity for a cultural
description’ since `there is nothing so coherent as a paranoid’s delusion or a swindler’s story’
(Geertz 1973: 17± 18; also Geertz 1983).
3 The notion of `local’ which I use here is more complex than earlier sharp distinctions between,
for instance, the concept of `great’ and `little’ (or `folk’) traditions as a means of describing
large-scale civilisation s such as Islamic (Eickelman 1982: 2). However, it must be emphasised that
the notion carries the misleading connotation of something provincial, or an inferior and
imperfect realisation of some `genuine’ or `high’ culture of religious belief and practice. Although
this misconceptualisatio n is sometimes the case, it cannot be generalised. In this study, the term
`local’ is used to refer to the concepts of culture, religion and law which are not under the
auspices of the state or the leading elite and makes no presuppositions about `genuine’, `high’,
`perfect’ etc.
4 On the same theme, Peach and Glebe (1995: 40) underline that `Muslims have been called upon
to react in three different ways: ghettoization; political organization; liberalization’ . Nielsen also
writes of Muslims educating their own children, and organising their own family relations
without reference to civil registries or English family law ± see Nielsen (1987b: 389, also 1987a).
5 The term `dar ul-hizmet’ has been employed by some religious communities which want to stay
out of politics. The faith-based Gulen movement is an example of this. Following the discourse
of the movement’s leader Fethullah Gulen, devotees stay away from politics and argue that their
ultimate goal is to represent Islam individually by being pious and successful in the public
sphere, disregarding daily politics and the instrumental use of religion in politics. See Yavuz
(1999).
6 Marriage Act 1949, s46(2); Qureshi v Qureshi (1972) Fam 173, 186.
7 Marriage Act 1949, ss12, 45(1).
8 Marriage Act 1949, ss44, 45(1).
9 To be more precise, there are two kinds of polygamy: where the husband is allowed more than
one wife (polygyny), and where the wife is allowed to have more than one husband (polyandry).
Since polyandry is very rare and is prohibited by Muslim law, I use the term polygamy to mean
polygyny.
10 Matrimonial Causes Act 1973, s11(b).
11 R v Bham (1961) QB 159 (CCA), overruling R v Rahman (1942) 2 AU ER 165.
12 Immigration Act 1988, s2.
13 Matrimonial Causes Act 1973, s11(b).
14 Interview in Q-News, no. 270± 1, June 1997: 8.
15 For such a case see Bibi v Ali (1997) reported in Q-News, 270± 1, June 1997: 8.
16 Domicile and Matrimonial Proceedings Act 1973, s16; also Family Law Act 1986, s44(1).
17 For an extensive literature on this see Badawi (1995), Berkovits (1990), Carroll (1997), Chryssides
(1994), Hamilton (1995), Menski (1993) , Reed (1996) , Schuz (1996).
18 In some other cases, a Muslim woman could obtain a civil divorce, valid in English law, but then
find that her husband, at the time of the divorce, did not use the required Islamic formula for
divorcing her (Badawi 1995: 77; Chryssides 1994: 66). Sometimes, capricious husbands divorce
their wives officially but do not want to pronounce talaq or deliver the get in order to prevent the
woman from remarrying; such men use their power to grant or withhold divorce to be able to
negotiate favourable settlements on the issues of finance, property or children. See Carroll (1997:
100), Hamilton (1995: 118± 20), Schuz (1996: 150).
 The challenge of post-modern legality 353

19 So far as the Muslim minorities and their laws, including their customs, are concerned, this
phenomenon is of paramount importance, since Muslims and Muslim legal issues have started
to occupy the global public sphere often (see Vertovec 1996). Although there are minorities in
some non-Muslim states, at the same time they are part of a transnational universal ummah with
`transnational universal’ laws which encounter, interact and class with modern nation-state laws.

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Author details
Ihsan Yilmaz is Lecturer in Law at the School of Oriental and African Studies, University of London.

Address for correspondence:

Dr Ihsan Yilmaz
School of Oriental and African Studies
University of London
Thornhaugh Street, Russell Square
London WC1H 0XJ

E-mail: ihsanyilmaz@yahoo.com